By Susan Gluss and Christopher Ott
When a police officer fails to videotape a civilian encounter, courts should instruct juries to take that into account, according to a new report by Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic and the American Civil Liberties Union of Massachusetts.
The report, No Tape, No Testimony, comes in the wake of a national outcry over police violence against unarmed Black men. It argues that jurors should be told to devalue an officer’s testimony, or even disregard it altogether in extreme cases when police fail to turn on their body-worn cameras.
“Videos of police and civilian encounters can mean the difference between just and unjust results,” said report co-author Matthew Segal, the legal director of the ACLU of Mass. “Courts can encourage recordings of these incidents through jury instructions. Our model instruction would permit jurors to disregard testimony from officers who have unreasonably failed to record a police-civilian encounter.”
The report includes an appendix of police incidents that led to civilian injuries and deaths; officers wore body cameras in these cases, but did not turn them on.
“It’s not enough to rely on police officers to hit the record button. It’s not enough to rely on police departments to discipline officers who don’t do that. We need courts to become involved in this,” said co-author Catherine Crump, acting director of the Samuelson clinic. “Body-worn cameras will not live up to their promise of improving police accountability unless there are strong incentives for officers to record encounters with civilians.”
Incidents from across the country illustrate the importance and power of video. For example, the police who killed Walter Scott and Laquan McDonald now face criminal charges—largely due to video cameras that captured the shootings. Both Scott and McDonald were shot in the back.
These tragic incidents illustrate why police body-worn cameras are winning support from broad swaths of the public, as well as from law enforcement. In fact, video recorders, just by their presence, appear to reduce the number of violent police-civilian encounters, according to the report.
Many state courts already include jury instructions that encourage officers to record police station interrogations and drunk-driving (DUI) stops. But this is the first time anyone has suggested a similar strategy in street encounters between cops and civilians.
Juliana DeVries ’17, one of the Samuelson clinic students who worked on the report, examined the rules governing “custodial interrogations and the science behind the fallibility of witness testimony.” She said the work involved “strategic considerations you don’t get to practice in the classroom.”
Other students who collaborated on the project included Brian Hall ’17, Thomas Nolan ’16, Karina Puttieva ’17, and David Schlussel ’17. Their research helped underscore the need for recorded evidence.
“There is a growing awareness that eyewitness accounts can be unreliable, whether they are mistaken, fabricated, or nonexistent. And even when there are eyewitness accounts, courts and juries might unduly credit the police over civilians,” said Carl Williams, ACLU of Mass. staff attorney.
Crump cited a particularly troubling case that nearly led to a wrongful conviction—until a video surfaced.
“One of the most egregious examples of police noncompliance happened in California, when 11 deputies apprehended a man named Stanislav Petrov after a high-speed chase,” said Crump. “Not a single one of those deputies turned on his or her body camera. Petrov alleged that he was dragged out of his car and then severely beaten. The officers denied it.”
A private security camera recorded the incident last fall and substantiated Petrov’s claims. But Crump said the deputies’ noncompliance “shook my faith in the technology that held so much promise.”
In the eight states with jury instructions that encourage officers to activate video cameras for custodial interrogations—Alaska, Arkansas, Indiana, Massachusetts, Minnesota, New Jersey, Utah, and Wisconsin—the consequences for noncompliance vary. In New Jersey and Utah, unrecorded interrogations may be inadmissible.
In Utah, juries may be told that “evidence of a statement made by the defendant during a custodial interrogation … shall not be admitted against the defendant in a felony criminal prosecution unless an electronic recording of the statement was made and is available at trial.”
Similarly, the report’s model jury instruction cautions jurors to “draw inferences in favor of civilians and against police officers” when the failure to record during an encounter was unreasonable. It calls for more severe consequences when failure to record was an attempt to hide the truth.
If adopted, revised instructions would improve police compliance and help prevent wrongful convictions, Segal said. Recordings would also serve police officers facing excessive use of force by civilians. “Creating video evidence serves the truth, not one particular side,” he said.
The ACLU of Massachusetts and Berkeley Law distributed a version of this story as a press release on Nov. 29, 2016.